The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

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Thursday, May 14, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

For publication opinions today (2):

In City of Gary v. Majestic Star Casino, an 18-page decision including 3 opinions, Judge Brown writes:

In this interlocutory appeal, the City of Gary appeals an order denying the City's motion to transfer venue and an order denying the City's motion for a preliminary injunction to compel Majestic Star Casino, LLC (“Majestic Star I”) and the Majestic Star Casino II, Inc. (“Majestic Star II”) (collectively “Majestic Star”) to make payments from adjusted gross receipts to the City. The City raises two issues, which we revise and restate as:

I. Whether the trial court erred by denying the City's motion for change of venue from Marion County to Lake County where the Indiana Gaming Commission (the “Commission”) was named as a defendant in the declaratory judgment action; and

II. Whether the trial court abused its discretion by denying the City's motion for a preliminary injunction.

We affirm. * * *

I. The first issue is whether the trial court erred by denying the City's motion for change of venue. * * *

Strictly construing Ind. Appellate Rule 14(A), we lack authority to exercise our appellate jurisdiction and we are unable to consider the merits of the City's arguments regarding venue. * * *

II. The next issue is whether the trial court abused its discretion by denying the City's motion for a preliminary injunction. The grant or denial of a request for a preliminary injunction rests within the sound discretion of the trial court, and our review is limited to whether there was a clear abuse of that discretion. * * *

Generally, to obtain a preliminary injunction, the moving party has the burden of showing by a preponderance of the evidence that: (1) the movant's remedies at law were inadequate, thus causing irreparable harm pending resolution of the substantive action; (2) it had at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) its threatened injury outweighed the potential harm to appellant resulting from the granting of an injunction; and (4) the public interest would not be disserved. * * *

We cannot say that Majestic Star's actions are clearly against the public interest. The City's alleged damages are merely speculative. Other options, such as issuing bonds, exist for the City instead of cutting essential services. Majestic Star's actions of making payments to a segregated, interest-bearing account rather than directly to the City during the pendency of this action are not “clearly” against the public interest. Thus, we conclude that the rule pronounced in Rees is not applicable. * * *

In summary, we conclude that we lack authority to exercise our appellate jurisdiction in considering the merits of the City's arguments regarding venue. We also conclude that the trial court did not abuse its discretion by denying the City's motion for preliminary injunction because the City has an adequate alternate remedy.

For the foregoing reasons, we dismiss the appeal from the order denying the City's motion for change of venue and affirm the trial court's denial of the City's motion for a preliminary injunction. Dismissed in part, and affirmed in part.

BRADFORD, J. concurring in part and concurring in result with separate opinion
CRONE, J. concurring in part and concurring in result in part with separate opinion

[Bradford] I fully concur in the result and concur with Judge Brown as to Issue I. As to Issue II, I agree with Judge Crone to the extent the arbitration clause provides the City an alternate remedy at law and therefore conclude the trial court did not abuse its discretion in denying the City's request for a preliminary injunction. That being the case, I do not believe it is necessary to address the parties' arguments further.

[Crone] I fully concur with respect to issue I. As for issue II, I agree with the majority's conclusion that the trial court did not abuse its discretion in denying the City's motion for a preliminary injunction, but I respectfully disagree with its rationale in several respects.

In Randall Perkins v. Jayco, an 8-page opinion, Judge Brown writes:

Randall Perkins appeals from an order of the Full Indiana Worker’s Compensation Board (“Board”) denying his application for adjustment of claim. Perkins raises three issues, which we consolidate and restate as whether the Board erred when it denied his application for adjustment of claim. We remand. * * *

The issue is whether the Board erred when it denied Perkins’s application for adjustment of claim. The Board, as the trier of fact, has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. * * *

In the present case, the Board found that Perkins was at maximum medical improvement. Under Ind. Code § 22-3-3-4 and longstanding case law interpreting that provision, the Board could have awarded Perkins certain palliative care upon a finding that palliative care would reduce his pain and limit the extent of his impairment. Although Perkins argued that there was need for palliative care in his brief to the Board and submitted evidence that palliative care would reduce his pain so that he could work with restrictions, the Board made no findings on this issue. The Board has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. Triplett, 893 N.E.2d at 1116. Accordingly, we remand to the Board with instructions that it consider the arguments and any evidence relating to the issue of palliative care and enter findings and conclusions thereon.

NFP civil opinions today (5):

In Estate of Georgia A. Gourley; Pamela Trickey v. Sherra Wilson and Michael Gourley (NFP), a 5-page opinion, Judge May writes:

Pamela Trickey appeals an order that stock owned by her mother be distributed under the laws of intestate succession rather than pursuant to the residuary clause in her mother's probated will. We reverse. * * *

Indiana Appellate Rule 46(A)(8)(a) and 46(B) require parties on appeal to support each contention in their arguments with cogent reasoning and citations to legal authorities, statutes, and the record. Wilson has not provided the requisite cogent reasoning on her claim the bequest of the stock lapsed; we therefore cannot find it should have been distributed pursuant to the laws of intestate succession. We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood. Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied 855 N.E.2d 995 (Ind. 2006). Failure to put forth a cogent argument acts as a waiver on appeal, id., and is equivalent to a failure to file a brief. Bright v. Kuehl, 650 N.E.2d 311, 317 (Ind. Ct. App. 1995). We therefore cannot find the bequest was properly subjected to intestate distribution on the ground it had lapsed.

The stock at issue should have been distributed pursuant to the residuary clause in Georgia's probated will. We accordingly reverse the probate court's Order for Distribution of Stock and direct the stock be distributed in equal shares to Wilson, Trickey, and Trickey's two children as provided in Georgia's will. Reversed and remanded.

[ILB note - See the devastating footnotes on p.4.]

In Bruce Frey v. Mr. Roof Indianapolis, LLC (NFP), a 7-page opinion, Judge Robb writes:

Bruce Frey appeals the trial court’s order granting Mr. Roof Indianapolis, LLC’s (“Mr. Roof”) Motion to Dismiss for Lack of Subject Matter Jurisdiction. On appeal, Frey raises two issues, one of which is dispositive. We restate that issue as whether the trial court properly determined that it lacked subject matter jurisdiction because the parties were contractually obligated to arbitrate the claims brought by Frey. Concluding that the trial court does have subject matter jurisdiction because the parties are not required to participate in arbitration, we reverse and remand.

[ILB note - see footnote on p. 6]

L & W Outdoor Advertising and Laurence Weaver v. Douglas Lawson (NFP) - "L & W Outdoor Advertising and its president, Laurence Weaver, (collectively “L & W”), appeal the judgment that its lease agreement with Douglas Lawson expired on June 7, 2008. We affirm."

Term. of the Parent-Child Rel. of K.S.T., K.M.P.T., and K.K.T.; R.T. v. Madison Co. Dept. of Child Svcs. (NFP)

Aaron Isby v. Alan Finnan, Supt. (NFP)

NFP criminal opinions today (11):

Gary Vanvleet v. State of Indiana (NFP)

Damon B. Catt v. State of Indiana (NFP)

William O'Brien v. State of Indiana (NFP)

Antwuan Davis v. State of Indiana (NFP)

Dale E. Moore v. State of Indiana (NFP)

Dontae L. Davis v. State of Indiana (NFP)

James A. Alexander v. State of Indiana (NFP)

Justin Juregeson v. State of Indiana (NFP)

Murial A. Pitt v. State of Indiana (NFP)